In Washington, policymakers often exaggerate the importance of non-achievements.  A case in point is the Justice Department’s new guidance on the use of race and other suspect classifications in federal law enforcement activities. 

Although the new guidance explicitly recognizes that discriminatory profiling is “unfair” and “ineffective,” and that biased practices “promote mistrust of law enforcement, and perpetuate negative and harmful stereotypes” – it exempts key components of the Department of Homeland Security (DHS), including border and airport screening, and does not even apply to state and local law enforcement. 


To put these gaping loopholes into perspective, DHS is the largest federal law enforcement agency, and state and local law enforcement carry out the bulk of law enforcement activities in the United States.   

Back in 2001, President George W. Bush resolved to end racial profiling in the United States.  Although law enforcement officials throughout the world overwhelmingly consider racial stereotypes to be an ineffective basis for law enforcement activity, the Bush Administration framed the issue in moral terms, expressing the view that profiling is “wrong” and “dehumanizing.” 

Despite this lofty rhetoric, the guidance issued by then-Attorney General John Ashcroft two years after 9/11 was riddled with loopholes that gave federal law enforcement agencies a blank check to profile with impunity  The Ashcroft guidance did not even pretend to protect Americans from profiling based on religion and nationality, and gave federal law enforcement agencies wide latitude to trump civil rights by invoking national security and border protection. 

These loose standards remained in force long after the inauguration of President Obama and may have led to widespread civil rights abuses against law-abiding Americans, including profiling of Americans suspected of being illegal immigrantsinterrogation of Muslim Americans at border checkpoints, and profiling of ethnic and religious minorities by the TSA at American airports.  

Although Attorney General Eric HolderEric Himpton HolderBig stimulus packages required, but they risk political blowback Trump's DOJ makes a case for civil rights for the unborn Trump defends rhetoric: 'When they hit us we have to hit back' MORE’s new guidance does belatedly add religion and nationality to the list of characteristics that deserve protection from profiling, this may be a moot point.  The non-inclusion of border and airport screening in the guidance means that Americans could still be asked to produce immigration papers if they look too dark; Muslims and Arabs returning to the United States could still be asked where and how often they pray; and minorities could still be asked to submit to extra screening at airport checkpoints because of stereotypes about what Americans should look like. 

In substance, if not form, the Holder guidance may be just as bad as the Ashcroft guidance.    

While the Obama Administration dithered for five years about how to improve the Ashcroft guidance, dozens of lawmakers in Congress co-sponsored the End Racial Profiling Act (ERPA). 

Unlike the guidance, this important legislation promises a categorical prohibition on invidious profiling throughout the nation, without any loopholes.  To promote accountability among law enforcement agencies nationwide, ERPA would provide a meaningful remedy to profiling victims and require data collection to diagnose the extent to which profiling is occurring. 

Although ERPA has languished like most legislation in Congress, it is one of the best available blueprints for Americans who agree it is wrong for law-abiding individuals to be treated like criminals by their government solely because of their race, ethnicity, religion, gender, and nationality. 

Given the inadequacy of the Holder guidance, the next Congress should demonstrate leadership and pass ERPA.  This need not be a partisan issue.  Liberals and conservatives alike have a stake in ensuring that law-abiding Americans remain free from government scrutiny. 

Nor does this issue have to be one that only concerns people of color.  Profiling can affect anyone.  For example, although it is true that the U.S. Department of Justice has reconstituted a task force to address the sharp rise in domestic extremism, it should be illegal to subject white Americans to extra security screening simply because they fit the racial profile of Timothy McVeigh.  

Beyond Congress, state and local government officials must begin to close their own gaps by using ERPA – not the new Holder guidance – as a baseline for their own anti-profiling laws and policies. 

Given the Obama Administration’s failure to address profiling through its new guidance, there is much more work to be done to end profiling in America.  Attorney General Eric Holder has repeatedly said that profiling undermines the effectiveness of law enforcement, and so it is unfortunate that his legacy will be that he could not end the practice – in his words, “once and for all.” 

Singh is director of law and policy at the Sikh Coalition, the largest Sikh American civil rights organization in the United States.